Monday, May 29, 2006

Today is a day for you and your family to reflect on those who have served our country. I personally thank all those who have served and are serving our country, especially those in my family and other West Virginians.

West Virginia serves an important and uniquehistorical perspective on this day. West Virginia broke from the Commonwealth of Virginia during the Civil War and was admitted to the Union as a seperate state on June 20 1863. I grew up in New Martinsville, West Virginia about 5 miles south of the Mason-Dixon Line that represents the historical division between North and South. The Mason-Dixon Line along with the banks of the Ohio River which I grew up on served as the division between free and slave states.

Regardless of your perspective on the current war or war in general -- today is a day to honor and memorialize the past. As pointed out by the editor of Blawg Review from a piece by Andy Rooney, we need to use the past history of Memorial Day to point to the future. Be sure to tell your children about the importance of Memorial Day or Decoration Day, as my dad calls it. Memorial Day is a time for West Virginians to remember why Mountaineers Are Always Free and will continue to fight for freedom in many ways.

If your an old time music fan or a fan of music in general you should plan to attend. I think its one of West Virginia's best kept secrets. Some of the best music happens off stage under the trees, in the nooks and crannies around the State Capitol Building and sitting around late in the evening. Check out the schedule of events and press release for this years West Virginia Memorial Day tradition.

Vandalia is MusicThe Vandalia Gathering brings together the finest traditional Appalachian musicians for a weekend of great picking. Elder statesmen and young upstarts perform on stage, compete in contests and play in impromptu jam sessions all over the Capitol Complex. Visitors to the Gathering can enjoy fiddle, banjo, mandolin and guitar contests outside during the day, and concerts in the State Theater in the evenings. Keep your ears open!

Vandalia is DanceFrom mountain flatfooting to Celtic dancing, the Vandalia Gathering brings to life the international heritage of West Virginia dance. The Gathering features demonstrations of Irish, Scottish, Morris, Swiss, Croatian and Appalachian dancing in the Great Hall, with the audience invited to learn and join. Native Americans present their dance and music outdoors on the Capitol grounds. Square dancing and flatfooting takes place at the Dance Stage outdoors all afternoon for public participation. Put on your dancing shoes!

Vandalia is a Way of LifeThe Vandalia Gathering exhibits the traditions and many influences of West Virginia folklife. Ethnic and (very) American foods are served at the many food booths operated by area non-profits. The Craft Circle brings to one location a wide assortment of West Virginia artists and their works. From wood-fired pottery and Raku to folk toys and glass, over twenty craftspeople will be on hand to demonstrate and sell their works. The Old-Time for Young'uns area will give children the chance to experience some of the life, work and play of the early days of this state.

Vandalia is a PlaceVandalia was a proposed colony, originating in the land speculations of politically influential Englishmen and prominent Colonial Americans. In 1768 Benjamin Franklin was one of the organizers of the Great Ohio Company, which proposed the creation of Vandalia as the 14th colony. It would have included almost all of present West Virginia, except for the Eastern Panhandle, and much of Kentucky. The name was a gesture to Queen Charlotte, wife of George III, who proudly claimed descent from the Vandals through her birth to German nobility. The plan almost came to fruition in 1772-74, until the deteriorating American political situation made the British government back off.

The word Vandalia is rich in West Virginia heritage, synonomous with the desire for a free government in the mountains. And today, Vandalia is a place every Memorial Day weekend, at the Capitol Complex in Charleston, West Virginia, where the Vandalia Gathering presents traditional music, dance, crafts and food to keep the old ways alive in young minds.

Government Health IT reports: West Virginia is one of 22 states selected to participate in a program funded by Health and Human Services (HHS) to examine the state privacy and security laws involved in the exchange of health information. I previously posted about West Virginia's involvement in this project.

RTI International was awareded a $17.2M contract by HHS to work with health care professionals and other health industry stakeholders throughout the U.S. to examine the practical hurdles to the formation of a uniform, interoperable health information exhcange while protecting patient specific data and addressing patients' privacy concerns.

Monday, May 22, 2006

What impact will the release of personal information of approximately 26.5 million veteransrecords have on the publics perception of privacy of health information and the movement toward an electronic health information system?

The reports that I've read indicate that medical information was not included in the electronic data stolen. The data stolen did contain personal information, including name, social security number, date of birth and certain disability rating information. The data was stolen after an VA employee took the unencrypted records home on a laptop computer and the laptop was stolen from his residence.

UPDATE: As expected, a class action has been filed seeking $1,000 in damages for each person impacted by the data breach. With over 26 million veteran records involved, this could amount to an estimated $26.5 billion in damages.

The action seeks declaratory and injunctive relief and money damages for the violations of the Administrative Procedures Act and the Privacy Act of 1974. The complaint states the, "plaintiffs represent approximately 26,500,000 individuals who have suffered emotional trauma and been placed in fear of identity theft, destruction of credit and financial fraud because of Defendants' reckless disregard for the privacy of these citizen's basic personal information." The complaint contains the details of the laptop theft of a computer and external data storage device from the home of a VA employee and a more detailed description of the nature of the claims alleged by the plaintiffs.

Its a great resource for lawyers and other West Virginians interested in knowing what changes to the law occurred in 2006. If you are interested in a particular bill you can then go get a full copy of the bill text via the Legislature's website.

Monday, May 15, 2006

Be sure to change the channel and tune into this week's edition of Blawg Review #57 hosted by Ryan Austin, a law student blogger (or bobber) over at Lawyerlike. As I venture on new blogs I like to read the first post.

For example, as a health lawyer focusing a part of my practice on HIPAA privacy and security compliance issues -- I found the search for the term "HIPAA" interesting. Relatively flat line on the volume chart -- going down a bit from 2004 to 2005 and a little rise in the beginning of 2006. Interestingly enough the top city for the search was Nashville. I suspect this is largely due to the fact that a number of national hospital companies are based in the Nashville area.

Give it a try and post your creative legal uses for Google Trends in the comments.

I just learned yesterday that proposed changes are being made to the requirements for reporting adverse events to the National Practitioner Data Bank (NPDB). The proposed rule titled, National Practitioner Data Bank for Adverse Information on Physicians and Other Health Care Practitioners: Reporting on Adverse and Negative Actions, was published in the Federal Register on March 21, 2006 (71 FR 14135, March 21, 2006) and comments are due on the proposed rule on or before May 22, 2006.

The NPDB contains reports of adverse licensure actions against physicians and dentists (including revocations, suspensions, reprimands,censures, probations, and surrenders forquality of care purposes only); adverse clinical privilege actions against physicians and dentists; adverse professional society membership actions against physicians and dentists; andmedical malpractice payments made for the benefit of any health carepractitioner. Groups that have access to this data system include hospitals, other health care entities that conduct peerreview and provide health care services, State Medical or Dental Boards and other health care practitioner State boards. Individual practitioners can selfquery. The reporting of informationunder the NPDB is limited to medical malpractice payers, State Medical and Dental Boards, professional societies with formal peer review, and hospitals and other health care entities (such as health maintenance organizations).

The NPDB website contains the following notice about the proposed changes:

Section 1921 Federal Register Notice Published!

The Federal Register notice relative to the proposed rule that would revise existing regulations governing the National Practitioner Data Bank, to incorporate statutory requirements under Section 1921 of the Social Security Act was published on March 21, 2006.

Section 1921 will add adverse action reports, which are not restricted to issues related to professional competence and conduct, on all licensed practitioners. Also it would add adverse action reports relative to certain negative actions or findings, mainly those taken by private accrediting organizations (e.g., the Joint Commission on Accreditation of Healthcare Organizations, National Committee for Quality Assurance, URAC, Commission on Accreditation of Rehabilitation Facilities). This regulation allows hospitals access to adverse action reports on all licensed health care practitioners.

Health care providers are more concerned about the appropriate handling and control of medical and health information due to the changes brought on by the requirements of the privacy and security standards under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). HIPAA has become one of the major policy, technology and operations issues facing the health care industry today. The HIPAA standards are meant to facilitate the development of a uniform, computer-based health information system providing for the secure handling, collecting, protection and sharing of protected health information.

This seminar will provide you with an overview, understanding and practical guidance on issues related to health information and medical records. The seminar will explore health information issues under West Virginia law and provide practical guidance on how to handle everyday health information related issues.

Seminar highlights:

Maintaining the integrity and confidentiality of medical information

Liability issues involving medical record documentation

HIPAA and the impact on West Virginia medical record laws

Patient's right of access to medical information

Responding to various types of requests for medical information

Special procedures for mental health, HIV and substance abuse records

Learning objectives:

The attendee will be able to discuss documentation in the medical record.

The attendee will be able to identify the impact of HIPAA on medical record issues.

The attendee will be able to review mental health and psychiatric records.

The National Association of Medical Staff Services has a nice summary of a recent decision by the United States District Court in Louisiana regarding the scope of response a hospital should consider making when receiving a credentialing inquiry or pre-employment request about a former physician being credentialed by another hospital. I first became aware of this case while attending an American Health Lawyer Association conference earlier this year but at that time the decision had not been issued.

On May 19, 2005, the United States District Court in Louisiana decided the case of Kadlec Medical Center v. Lakeview Anesthesia Associates. The Court in Kadlec found found that hospitals have a duty to disclose material information about their medical staff members to other health care providers in order to protect future patients when a physician moves on. Kadlec requested from Lakeview Regional Medical Center “a candid evaluation of [the doctor's] training, continuing clinical performance, skill, and judgment, interpersonal skills and ability to perform….” Lakeview responded by stating that the doctor had served on the hospitals staff but that due to the large volume of inquires the hospital receives about its former physicians no further information would be provided.

Those involved in responding to credentialing requests for hospital should take a look at this decision and the impact it might have on your process for responding.

UPDATE: On May 26, 2006, a jury returned a verdict in favor of Kadlec Medical Center in the amount of $8.2M . The jury found that Lakeview Regional Medical Center along with the other physcians in the case made intentional and negligent misrepresentations to Kadlec Medical Center and that the misrepresentations were the proximate cause of the injuries. The jury verdict form from the trial can be reviewed courtesy of the Horty Springer website. Thanks to Rita Scwab over at MSSPNexus Blog for pointing me to the jury verdict info.

, Appeal No. 06-30745reversing the jury's verdict against the Lakeview Regional Medical Center because the hospital did not make misrepresentations of fact to Kadlec Medical Center. The Court also found that the hospital was under no duty to disclose information regarding the physician. The Court upheld the jury's verdict against Louisiana Anesthesia Associates finding that they had midlead Kadlec regarding the physician's abilities.

Following is a summary of the facts and issues presented in the appeal by a member of the FSB Health Care Practice Group.

In KadlecMedicalCenter v. Lakeview Anesthesia Associates, the Fifth Circuit Court of Appeals examined what duties a physician and hospital have in responding to credentialing questions from another facility.In Kadlec, Dr. Berry, an anesthesiologist, was investigated by the hospital after the nurses noted that Dr. Berry was making excessive withdrawals of Demerol.As a result of the investigation, the hospital consulted Dr. Berry’s partners at Louisiana Anesthesia Associates (“LAA”).The LAA partners agreed to monitor Dr. Berry’s actions.Dr. Berry and his partners entered into an agreement, in which Dr. Berry was required to document all of his Demerol withdraws.

Three months later, Dr. Berry failed to answer a page while on duty at the hospital.He was found in the on-call room asleep, groggy, and unfit to work.Dr. Berry admitted to his partners at LAA that he had been abusing Demerol.Dr. Berry’s partners terminated Dr. Berry’s employment with LAA “for cause.” Similarly, the hospital decided that it was in the best interest of patient safety for Dr. Berry to no longer practice at the hospital.Neither LAA nor the hospital reported Dr. Berry’s conduct to the Board of Medicine or National Practitioner Data Bank.

Several months later, Dr. Berry applied for privileges at KadlecMedicalCenter (“Kadlec”) in WashingtonState.Dr. Berry obtained and submitted with his application for prvileges two letters of recommendation from his former partners at LAA.The letters, written only 68 days after being fired from LAA, described Dr. Berry as an “excellent clinician, who was “highly recommended.”

Kadlec contacted the hospital where Dr. Berry previously worked and asked the hospital to provide it with information regarding any disciplinary action involving Dr. Berry, Dr. Berry’s ability to perform, and whether Dr. Berry had shown any signs of personality problems.The hospital chose not to respond to Kadlec’s inquiries, but instead sent Kadlec a letter stating that Dr. Berry was employed from March 1997 to September 2001.The letter made no mention of Dr. Berry’s drug problems.Ultimately, Kadlec awarded Dr. Berry anesthesia privileges, and he began working.

Dr. Berry worked at Kedlec without indecent for several months.After suffering a back injury in a car accident, the nurses at Kedlec noticed that Dr. Berry looked sick and exhibited mood swings.In September 2002, Dr. Berry gave a patient too much morphine during surgery, and the patient had to be revived with Narcan.Two months later, Dr. Berry sedated a patient for a routine tubal ligation.When the nurses moved the patient to the recovery room, the nurses noted that the patient’s fingernails were blue and she was not breathing.Dr. Berry was called in to resuscitate the patient, but was unable to do so.Ultimately, the patient was resuscitated, but suffered a brain injury and remains in a permanent vegetative state.Following this incident, Dr. Berry admitted to Kadlec’s administration that he was addicted to Demerol, and he voluntarily entered into a drug rehab program.

The patient’s family brought a medical malpractice suit against Dr. Berry and Kadlec, claiming that both Dr. Berry and Kadlec were responsible for the patient’s brain injury.Both Dr. Berry and Kadlec settled with the patient’s family.After settling with the patient’s family, Kadlec sued LAA and the hospital where Dr. Berry previously worked.Kadlec claimed that LAA and the hospital misrepresented the facts and circumstances surrounding Dr. Berry’s employment in their letters.Kadlec claimed that had it known the truth about Dr. Berry, Dr. Berry would never have obtained anesthesia privileges at Kadlec.

Kadlec’s case against LAA and the hospital was tried to a jury.The jury found that both LAA and the hospital were liable to Kedlec for the representations they made in their letters regarding Dr. Berry.The jury awarded Kadlec $8.24 million in damages.LAA and the hospital appealed the jury’s verdict, claiming that any representations to Kadlec in the referral letters did not establish liability on behalf of either LAA or the hospital.

On appeal, the Fifth Circuit Court of Appeals held that after choosing to write the referral letters on behalf of Dr. Berry, LAA and the hospital assumed a duty not to make any misrepresentations in the letters.The Court examined the letters sent by Dr. Berry’s former LAA partners and the hospital and concluded that the only the partner’s letters were misleading.The Court reasoned that the LAA partner’s letters were false and misleading because Dr. Berry’s former partners referred to him as a “highly recommended” and “excellent” physician, when they knew he was a drug addict.The Court stated that “once a party volunteers information, it assumes a duty to insure that the information volunteered is correct.”The Court found that the letter submitted to Kadlec by the hospital was not false or misleading because it merely provided Dr. Berry’s dates of employment and did not comment on Dr. Berry’s proficiency as an anesthesiologist.

The Court further held that neither LAA nor the hospital had an affirmative duty to disclose to Kadlec Dr. Berry’s addition to prescription drugs.The Court found that only where special circumstances exist, such as a when a fiduciary or confidential relationship exits between the parties, does a party have a duty to disclose such information.The Court stated that protecting an employee’s privacy outweighs imposing a broad duty to disclose information on employers.Therefore, LAA and the hospital did not have a duty to inform Kadlec about Dr. Berry’s addiction to Demerol.

Ultimately, the Fifth Circuit reversed the jury’s verdict against the hospital because the hospital did not make misrepresentations of fact to Kadlec.Further, the hospital was under no duty to disclose information regarding Dr. Berry’s drug addiction to Kadlec.The Fifth Circuit upheld the jury’s verdict against LAA, finding that LAA mislead Kadlec regarding Dr. Berry’s abilities, despite the fact that LAA had no duty to report Dr. Berry’s drug addiction to Kadlec.

While the Fifth Circuit’s holding is not binding in West Virginia, it is likely that the West Virginia courts would rule the same way.When a physician or hospital responds to credentialing questions and/or forms from other health care facilities, it is important that the physician or hospital only provide truthful information.Physicians and hospitals should take care to not provide the inquiring facility with any misleading or false information.

According to the Fifth Circuit’s holding in Kadlec, physicians and hospitals are under no duty to respond to credentialing questions from another facility.However, if the physician or hospital decides to respond, it must seek to provide truthful information that will not mislead the credentialing facility.

Monday, May 08, 2006

A quick congrats to Crystal Stump who recently decided to leave her old firm of Swartz & Stump to focus on her growing practice in the area of international and domestic adoptions, readoption, foster-adoptions and step-parent adoptions. She will be undertaking adoption related work state-wide in West Virginia. As an adoptive parent she has special insight into the process. She

Thursday, May 04, 2006

The Centers for Medicare and Medicaid Services (CMS) has issued revised version of various Medicare 855 Enrollment forms used by providers and suppliers to enroll in the Medicare program to be reimbursed for services provided to Medicare beneficiaries.CMS' press release on the efforts to streamline and improve the enrollment process states, "the final regulation makes Medicare enrollment requirements more uniform so a health care provider or supplier can bill Medicare most efficiently. The rule standardizes existing Medicare enrollment requirements that have been used by the various Medicare contractors that process and pay Medicare claims."

Copies of the revised CMS 855 forms can be found on the CMS Forms site. Below are direct links to the particular 855 application forms.

Tuesday, May 02, 2006

For "live" shots of Charleston check out the live webcam looking west along Kanawha Boulevard and the Kanawha River from the Union Building hosted by a friend of mine, Gregg Murray, who owns and operates Sales Imaging LLC, specializing in customized radio advertising sales. For some photos of what this are looked like in the past and how it might look (and be used in the future) check out the Charleston Riverfront master plan.

Excerpts from the Beatles' Revolution gets me excited for the health care industry:

You say you want a revolution . . . We all want to change the world . . . You say you got a real solution . . . We'd all love to see the plan . . . Don't you know its gonna be alright . . .You say you'll change the constitution . . . We all want to change your head . . . You tell me it's the institution . . .

A health care lawyer practicing at Flaherty Sensabaugh Bonasso PLLC and blogging from Charleston, West Virginia. Focused on helping businesses and health care providers weave through a variety of state and federal health care regulations and assisting them in business transactions. Interested in the application of technology to the practice of law and medicine, including issues involving privacy of health data, social networking and the evolution and adoption of electronic medical record systems and other uses of technology to make health care better in the future for you and me.
Email me at: RCoffield-at-fsblaw.com

West Virginia Law Blogs

Bethany College Alumni Blogs

West Virginia Blogs

Sitemeter

Disclaimer: The views and opinions on this blog are those of the author. Nothing contained in this weblog is intended as legal advice. This weblog was created to provide general information, opinions of the author and general musings. Accessing this website is not a consultation for legal advice or services and this weblog does not create an attorney-client relationship.